What is a Tort?

Law of civil wrongs A legal wrong committed by one person that allows the aggrieved person to sue to wrongdoer for the recovery of damages for the wrong Awarded in compensation for damage to person, property, or economic loss Difficulty of defining a tort Courts havent yet arrived at an adequate definition of the law of torts tort means wrong but doesnt help define the subject concerned with the interests which a person has on bodily security or the protection of tangible property, financial resources or reputation which we protected by law, which are not exclusively within the fields of the law of contract, the law of restitution or the criminal law where conduct of the defendant is negligent rather than intentional law was less clearly defined Tort and Contract aim of tort is to provide compensation in this aspect is similar to contract however there are a many differences tort duties owed to the whole world whereas contract between individual parties law of contract seeks to protect a single interest fewer differences that you would think, however, a distinction remains Tort of restitution aimed at the restoration of benefits unintentionally conferred by one person on another or prevention of unjustified enrichment of one at the expense of another might be thought areas are dissimilar, areas overlap purpose is the same Tort and crime liability varies depending on whether sued in tort or prosecuted for a crime criminal law under the Criminal Code functions are different, criminal law protects interests of people at large and punishes wrongdoers Aim of the law of torts provide compensation for losses which are deemed worthy of reparation defendant needs to be insured to get compensation usually Compensation for losses suffered function of law of torts to determine when harm is worthy of compensation Loss distribution and insurance to shift a loss of a plaintiff to the defendant (through insurance, which means spreading the cost over a large sum of people)

Distinction between trespass and action on the case a) prior to development of negligence were trespass and action on the case determined according to whether injury or loss was caused directly or indirectly negligence today is an example of action on the case Direct as opposed to indirect action focus of distinction is whether there was direct interference as opposed to an indirect interference classic example of distinction between trespass and case and direct/indirect is Reynolds v Clarke (1726) 93 ER 747 Trespass is actionable per se not required to prove damage suffered action on the case must prove damage *See Tutorial Question 2

Intentional Torts Against the Person Battery Intentional (Gray v Barr) Positive act (Innes v Wylie) Direct (Reynolds v Clarke) Interference with another (Stephens v Myers) Causes bodily contact (McNamara v Duncan) Does not have to be hostile touching (Collins v Wilcock) Battery is the unwanted touching of another without their consent. The elements of battery involve an intentional (Gray v Barr), positive act (Innes v Wylie) and direct (Reynolds v Clarke) interference with another (Stephens v Myers), which causes bodily contact (McNamara v Duncan) with a person. There does not have to be hostile touching to constitute a battery, just an application of force. (Collins v Wilcock). Innes v Wylie If policeman was passive no battery had been committed Verdict from the jury was for the plaintiff police man committed battery by touching plaintiff and pushing Intentional act action of the defendant which must be intended not harm which results (Gray v Barr) Must be lack of consent if consent is given to contact will not constitute a battery not express consent can be implied must be real and not exceeded Element or defence? Australia treats lack of consent as a defence in trespass McNamara v Duncan the onus is on the defendant to prove consentThe contrary view is inconsistent with a persons right of bodily integrity. Other persons do not have the right to interfere with an individuals body Assault Assault under the common law varies from an assault constituted under the criminal law. Intentional and direct (Stephens v Myers) Positive threat (Innes v Wylie) By the defendant towards the plaintiff without their consent (defence?) (McNamara v Duncan) Apprehension of imminent harmful contact (Zanker v Vartzokas) Must have means to be carried out (Stephens v Myers)

In common law, an assault entails an intentional and direct (Stephens v Myers) positive threat (Innes v Wylie) by the defendant towards the plaintiff without their consent (McNamara v Duncan) There must be initiated in the plaintiff a reasonable apprehension that some imminent or harmful contact could occur (Zanker v Vartzokas) which would ultimately lead to a battery. The harm must have a means to be carried out in order to constitute an assault. (Stephens v Myers) Stephens v Myers Chairman of parish meeting advanced towards the plaintiff with his fist clench could strike plaintiff No every threat that constitutes assault must be means of carrying assault into effect Judge said if he was so advancing that within a second or two of time he would have reached plaintiff, it seems to me like an assault in law. Jury found for the plaintiff Reasonable apprehension of imminent/harmful contact Zanker v Vartzokas Young woman accepted lift from accused, in a van offered her money for sexual favours, said he was going to take her to a mates house Magistrate dismissed a charge of assault because there was no fear of immediate violence but fear of future violence Question is how immediate must the threatened physical violence be after the threat the utterance having as much effect in an hour or so as it has at the moment of utterance B) the apprehension must be reasonable